Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed. The Tribunal’s General Division made an error of law, but it still came to the right result.

Overview

[2] This is an appeal of a General Division decision requiring the Appellant to repay seven years of disability benefits.

[3] The Appellant is a 70-year-old former journalist and university instructor who has been diagnosed with post-traumatic stress disorder (PTSD), depression, and rheumatoid arthritis.

[4] In May 1998, the Appellant applied for a Canada Pension Plan (CPP) disability pension. After reviewing his medical records, the Minister determined that the Appellant had a severe and prolonged disability. The Minister approved the Appellant’s application effective June 1997.

[5] In 2004, the Appellant began working as a parking lot attendant. In November 2017, the Minister accused the Appellant of failing to disclose his earnings once they exceeded the allowable amount. The Minister reassessed the Appellant’s CPP disability eligibility from April 2009 to June 2016 and demanded repayment of all the money he had received from the government between those dates, an amount totalling $49,483.^{Footnote 1}

[6] The Appellant appealed the Minister’s reassessment to the Social Security Tribunal’s General Division. The General Division held a hearing by teleconference and dismissed the appeal, in part because the Appellant’s earnings were greater than the maximum CPP disability pension amount in 2009, 2012, 2013, and 2014.

[7] The Appellant requested permission to appeal the General Division’s decision. He alleged that the General Division made the following errors:

• It assessed his earnings without regard for Service Canada’s CPP Disability Adjudication Framework;
• It assessed his earnings from 2009 to 2013 using criteria that were not put into law until 2014;
• It found that he had regularly received reminders to report his income, ignoring the fact that such reminders were never directly addressed to his attention; and
• It found that he spent one night in hospital in August 2015 when in fact it was four nights.

[8] I granted the Appellant permission to appeal because I thought he had an arguable case on at least one issue. Last month, I held a hearing to discuss the Appellant’s allegations in full.

Issues

[9] There are four grounds of appeal to the Appeal Division. A Appellant must show that the General Division

• proceeded in a way that was unfair;
• acted beyond its powers or refused to exercise those powers;
• interpreted the law incorrectly; or
• based its decision on an important error of fact.^{Footnote 2}

[10] At the hearing, the Appellant withdrew one of his allegations. He conceded that whether he was hospitalized for one night or four made no difference to the outcome of the General Division’s decision. That left three questions to be discussed:

• Should the General Division have used Service Canada’s CPP Disability Adjudication Framework to assess the Appellant’s earnings?
• Did the General Division make an error by assessing the Appellant’s earnings before 2014 using criteria that didn’t become law until that year?
• Did the General Division ignore evidence that Service Canada’s reminders to report his income were never directly addressed to his attention?

Analysis

[11] I am satisfied that the General Division erred by assessing the Appellant’s income using criteria that didn’t become law until later. Because the General Division’s decision falls for this reason alone, I see no need to consider the Appellant’s other allegations.

The General Division used an inappropriate standard to assess the Appellant’s pre-2014 earnings

[12] Under the Canada Pension Plan, a disability is “severe” if it renders a person incapable regularly of pursuing a substantially gainful occupation. The Canada Pension Plan did not define “substantially gainful” until May 29, 2014, when section 68.1 of the Canada Pension Plan Regulations (CPP Regulations) came into force. That section reads as follows:

For the purpose of subparagraph 42(2)(a)(i) of the Act, “substantially gainful”, in respect of an occupation, describes an occupation that provides a salary or wages equal to or greater than the maximum annual amount a person could receive as a disability pension...

[13] In its decision, the General Division compared the Appellant’s earnings for 2009 to 2013 with the maximum annual pension amounts for those respective years:^{Footnote 3}

[14] The Appellant’s pre-2014 earnings were not subject to the section 68.1 thresholds, yet the General Division nevertheless used them as benchmarks. The General Division was careful to say that it was using the thresholds merely for “guidance,” but it clearly attached significance to the fact that the Appellant’s income exceeded them in three of the five years before 2014. I also note that the General Division didn’t cite any case law that might have given it an idea of what courts and other tribunals regarded as substantially gain income during the relevant period.^{Footnote 4}

[15] I am satisfied that the General Division made an error by assessing the Appellant’s income using a law that wasn’t in effect when that income was earned.

Remedy

There are two ways to fix the General Division’s error

[16] When the General Division makes an error, the Appeal Division can address it by one of two ways: (i) it can send the matter back to the General Division for a new hearing or (ii) it can give the decision that the General Division should have given.^{Footnote 5}

[17] The Tribunal is required to conduct proceedings as quickly as the circumstances and the considerations of fairness and natural justice allow. In addition, the Federal Court of Appeal has stated that a decision-maker should consider the delay in bringing an application for a disability pension to conclusion. It has been three years since the Minister terminated the Appellant’s benefits. If this matter goes back to the General Division, it will needlessly delay a final resolution.

The record is complete enough to decide this case on its merits

[18] I am satisfied that the record before me is complete. The Appellant has filed a number of medical reports with the Tribunal, and I have considerable information about his employment and earnings history. The General Division conducted an oral hearing, in which the Appellant testified about his medical condition, its effect on his capacity to work. I had access to the recording of the hearing, and I doubt that the Appellant’s evidence would be materially different if this matter were reheard.

[19] As a result, I am in a position to assess the evidence that was available to the General Division and to give the decision that it should have given, had it not erred. In my view, even if the General Division had properly considered the Appellant’s pre-2014 income, it would have come to the same result. My own assessment of the record satisfies me that the Appellant ceased to be disabled as of April 2009.

The evidence does not point to a severe disability

[20] Having terminated the Appellant’s disability pension, the Minister bore the burden of proving that his disability ceased to be severe and prolonged.^{Footnote 6} I have reviewed the available evidence, and I have concluded that the Minister met that burden according to the test set out in the Canada Pension Plan. I have no doubt that the Appellant continues to suffer from several medical conditions, but I simply did not find enough evidence that symptoms associated with those conditions regularly prevented him from pursuing substantially gainful employment after April 2009.

[21] In 1998, the Minister granted the Appellant a CPP disability pension because of symptoms related to rheumatoid arthritis, depression, and PTSD. Despite these symptoms, the Appellant felt well enough to start working as a parking lot attendant in 2004. Years later, when the Minister terminated his pension, the Appellant insisted that, despite his job, he remained incapable of substantially gainful employment. He also claimed that he had since been diagnosed with other medical conditions, including gout, high blood pressure, gallbladder cysts, a transient ischemic attack, and an enlarged prostate.

[22] The Appellant argues that, his job notwithstanding, he never stopped being disabled. However, I must base my decision on more than just the Appellant’s subjective view of his capacity. In this case, the evidence, looked at as a whole, does not suggest a severe disability that prevented the Appellant from performing suitable work after April 2009. The Appellant remained subject to some limitations from that point onward, but he was not incapacitated from all types of work.

[23] I base my findings on the following factors:

The medical evidence suggests that the Appellant regained capacity

[24] The Appellant’s medical file contains numerous assessments confirming that he experienced significant impairments in the 1990s. However, the issue here is whether those impairments remained severe and prolonged.

[25] The available medical evidence suggests that they did not. In early 2010, the Appellant’s rheumatologist wrote that he was functioning at an overall high level:

He has no prolonged morning stiffness and his energy level is quite good. He has some mild soreness in his feet and left wrist but this is very tolerable. He continues to be able to work full time at a job which is not too physically demanding […] Certainly given the fact that he has had rheumatoid arthritis now for 22 years, his joints are certainly in good shape.^{Footnote 7}

A few months later, following a trip abroad, the Appellant was assessed for a potential tuberculosis infection by a physician who wrote: “He restarted his [arthritis] medication a week ago and has been compliant otherwise. His arthritis symptoms are currently stable.”

[26] Rheumatology reports in subsequent years indicate a gradual increase in the Appellant’s arthritis symptoms, despite repeated adjustments in his medication.^{Footnote 8} The Appellant testified that his condition deteriorated sharply in November 2014, when he developed septic arthritis in his right elbow,^{Footnote 9} but hospital records suggest that it was an isolated infection that was successfully treated with antibiotics:

He has now completed his course of IV antibiotics with the last dose having been given three days ago. He is feeling very well and has remained apyrexial. There is minimal pain in the right elbow and has full range of movement. His blood work from last week showed a normal WCC [white cell count] and normal inflammatory markers. His rheumatoid arthritis is currently quiescent on exam.^{Footnote 10}

[27] The Appellant continued to experience arthritic flare-ups, but they did not stop him from working. As we will see, he continued to regularly engage in substantially gainful employment until 2017.

The Appellant’s work from 2009 to 2014 indicates that his disability stopped being severe

[28] Until May 29, 2014, when section 68.1 of the CPP Regulations came into force, the term “substantially gainful” was defined by case law. In a case called Poole, the Pension Appeals Board said that a substantially gainful occupation paid compensation that was not merely “nominal, token or illusory” and which reflected “the appropriate reward for the nature of the work performed.”^{Footnote 11}

[29] According to a questionnaire completed by his employer, the Appellant began working as a parking lot attendant in October 2008. He continued to do as a casual employee until July 2016, when he took a part-time position, working 20 hours a week for $13.32 an hour. His job involved completing parking transactions while accepting payment in the form of cash, credit and debit. The Appellant’s work performance was described as satisfactory, and his attendance was described as good, although he often missed time for medical appointments. He worked independently with minimal supervision and required no special arrangements, nor help from co-workers.^{Footnote 12}

The Appellant’s employment record shows that he provided value for money

[30] There is no evidence that the Appellant was providing anything less than market value to his employer. There is nothing on the record to suggest that the Appellant was overcompensated for his work or that his employer’s productivity expectations were significantly lower than what they might have been for someone else with similar qualifications in the same position. There is no evidence that the Appellant’s employer was particularly benevolent.

[31] The law does not prevent disability recipients from working. However, their pension may be jeopardized if they consistently earn significant amounts from employment.^{Footnote 13} The Appellant was working on a casual or part-time basis, but that did not necessarily mean he was disabled or incapable of regularly performing substantially gainful employment.

The Appellant’s earnings from 2009 to 2013 were substantially gainful

[32] None of the cases that address pre-2014 earnings precisely mirror the Appellant’s circumstances, but the following examples offer some guidance on what “substantially gainful” meant around that time:

• In 2007, the Pension Appeals Board (PAB) found that post-MQP casual, part-time earnings of $7,000 from a benevolent employer fell short of substantially gainful.^{Footnote 14}
• Later that year, the Federal Court of Appeal upheld a PAB decision that found earnings of $10,000 and $38,000 for 2003 and 2004, respectively, were substantially gainful.^{Footnote 15}
• Around the same time, the PAB found part-time earnings of $14,561 and $16,028 to be substantially gainful.^{Footnote 16}
• In 2014, the PAB found the following amounts substantially gainful: $5,703 for work that had started in August 2009 following surgery and $14,000 for part-time work the following year at $18.00 per hour, three days a week over 36 weeks.^{Footnote 17}
• In 2017, the Appeal Division upheld a General Division decision that found earnings ranging from $9,547 to $18,564 between 2006 and 2009 to be substantially gainful.^{Footnote 18}

[33] While every case depends on its own facts, these decisions persuade me that the Appellant’s employment in the period before May 2014 was substantially gainful. In the five years from 2009 to 2013, the Appellant made between $11,375 and $18,232 annually. These amounts were fairly consistent and in some years approached what, in that era, someone would make earning the minimum wage at full-time hours. In my view, the Appellant’s earnings during the five years in question were not nominal, token, or illusory.

The Appellant’s earnings from 2014 to 2016 were also substantially gainful

[34] As noted earlier, section 68.1 of the CPP Regulations associates “substantially gainful” with a specific dollar value, depending on the year. Any amount earned over the maximum annual amount that a person can receive as a disability pension is deemed to be substantially gainful.

[35] In 2014, the Appellant earned an amount several hundred dollars over the threshold. In the next two years, he earned amounts just under the threshold. The Appellant’s earnings during these three years was consistent with the pattern established in previous years. For that reason, I am satisfied that the Appellant’s reported earnings from 2014 onward were substantially gainful.

The Adjudication Framework does not help the Appellant

[36] The Appellant has repeatedly insisted that his earnings are within guidelines contained in the CPP Disability Adjudication Framework, a document that the Minister’s staff uses to assess disability applications.

[37] That may be so, but it is also beside the point. The Adjudication Framework is just what it says it is—a guideline—and it has no force of law. As a member of the Social Security Tribunal, I am bound by the provisions of the Canada Pension Plan and its associated regulations. In coming to my decision, I cannot rely on a document that was internally generated within Minister’s department.

The Appellant’s disability was not prolonged

[38] Under the CPP, disability must be severe and prolonged. I have already found that the Appellant’s disability ceased to be severe as of April 2009. Although it is not, strictly speaking, necessary for me to do so, I also find that his disability was not prolonged. To be prolonged, a disability must be of indefinite duration; the Appellant’s disability came to an end after he commenced substantially gainful employment as a parking lot attendant.

[39] It is unfortunate that the Appellant must return seven years of benefits, and I regret that my decision will cause him financial hardship. However, he received those benefits after he had ceased to be disabled. He knew, or should have known, that he was obliged to immediately report any return to work to the Minister.^{Footnote 19} He did not meet that obligation. Years later, when the Minister learned of the Appellant’s employment earnings, she had the right to investigate whether he had regained his ability to work, and she had the right to terminate his benefits once she decided that his disability was no longer severe and prolonged. I am satisfied that, in doing so, the Minister acted in compliance with the law.

Conclusion

[40] I am dismissing this appeal. The General Division erred in law by using the section 68.1 thresholds to assess the Appellant’s pre-2014 earnings. However, I do not think the General Division would have come to a different conclusion if it had not made this error. Having conducted my own review of the record, I am not persuaded that the Appellant had a severe disability as of April 2009.